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LININGER v. KROMER (ET AL. (02/02/76)

decided: February 2, 1976.

LININGER
v.
KROMER (ET AL., APPELLANT). KROMER V. KOBYLARCZYK, APPELLANT



Appeals from orders of Court of Common Pleas of Indiana County, Dec. T., 1969, No. 25, and Dec. T., 1970, Nos. 158, 205, and 211, in cases of John Louis Lininger v. Karen Jacqueline Kromer and Tony Kobylarczyk; Karen Jacqueline Kromer v. Tony Kobylarczyk; Tony Kobylarczyk v. Karen Jacqueline Kromer; Margaret Kobylarczyk, Admx. v. Karen Jacqueline Kromer v. Tony Kobylarczyk.

COUNSEL

Daniel P. Stefko, with him James R. Miller, and Dickie, McCamey & Chilcote, for appellant.

Robert D. Douglass, with him Donald M. Miller, William E. Duffield, Ira B. Coldren, Jr., and Miller & Cope, and Coldren & Coldren, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Jacobs, J., concurs in the result.

Author: Hoffman

[ 238 Pa. Super. Page 262]

Appellant, Tony Kobylarczyk, contends that the trial court erred (1) in holding that his out-of-court statement made two hours after an automobile accident was not within the res gestae exception to the hearsay rule and, therefore, was not admissible, and (2) in directing the plaintiffs either to file a remittitur or to undergo a second trial limited to the issue of damages, instead of awarding a general new trial.

The factual history of the case is not complicated. On November 6, 1968, at approximately 5:00 p.m., appellant's pick-up truck was involved in an accident with a car driven by appellee, Karen Kromer, on Route 119,

[ 238 Pa. Super. Page 263]

    near Indiana, Pennsylvania. It is undisputed that the accident occurred at a point where the roadway was straight and level. Appellant had two passengers, his son, Robert, and a close friend, John Lininger; appellee was travelling alone. Because there were no other cars on the road, and because both of appellant's passengers were asleep at the time, the only witnesses to the incident were the two drivers.

At trial, both drivers gave their version of the events leading up to the collision. Appellant testified that he was driving on his side of the two-lane highway, that appellee approached in her lane, but that as the vehicles were about to meet, appellee's car swerved into his lane. He testified further that he attempted to move to his right, but was unable to avoid the crash. According to appellee, however, appellant approached her car in the wrong lane, and she swerved into his lane in order to avoid a head-on collision. She testified that at the moment she left her lane, appellant swerved to get back into his proper lane. Both parties agree that the accident occurred on appellant's side of the highway.

As a result of injuries he sustained in the accident, appellant's son died. The other three parties were all seriously injured. Four separate lawsuits were filed, and consolidated for trial: (1) Margaret Kobylarczyk, Administratrix of the Estate of Robert Kobylarczyk, deceased, filed suit against Karen Kromer, who joined Tony Kobylarczyk as an additional defendant; (2) Tony Kobylarczyk filed suit against Karen Kromer; (3) Karen Kromer filed suit against Tony Kobylarczyk; and (4) John Lininger filed suit against both Karen Kromer and Tony Kobylarczyk. Trial was held on March 18, 1974, and the jury found appellant liable in all four cases. Thus, the Estate of Robert Kobylarczyk recovered against appellant, as additional defendant, but not against appellee; John Lininger recovered only against appellant; and appellee recovered against appellant. Upon request by

[ 238 Pa. Super. Page 264]

    all counsel, the court instructed the jury to award damages separately for the various elements of compensation. The actual jury verdicts were as follows:

Margaret Kobylarczyk, Admrx:

Bills 1,598.25

Loss of Future Earnings 77,000.00

78,598.25

John Lininger

Bills 8,200.00

Lost Wages 35,616.00

Pain and Suffering 4,000.00

Loss of Future Earnings 40,284.00

88,100.00

Karen Kromer

Bills 16,575.80

Lost Wages ...


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